Federal Judiciary

Would You Like Your Terror in a Cone or a Cup?

By Robert Loblaw

U.S. v. Elfgeeh, 06-0638 (2^nd Cir., Feb. 14, 2008)

Today?s Second Circuit decisions bring us the story of Aref Elfgeeh, a Yemeni immigrant who used his Park Slope ice cream parlor as a front to illegally funnel more than $20 million to the Middle East. Elfgeeh?s operations were detected during the government?s crackdown on terrorism funding operations, yet the district court did not allow the prosecutor to use the “T” word during trial. Likewise, jurors never saw the checks seized from Elfgeeh, which had notations like “for the jihad” and “mujahidin,” nor were prosecutors allowed to present evidence that Elfgeeh referred to himself as Osama Bin Laden?s personal sheik.

But despite the district court?s efforts to keep this inflammatory information out of the courtroom, several newspaper reports published during the trial referred to this evidence and to Elfgeeh?s terrorist connections. Elfgeeh was convicted, and he appealed, arguing among other things that the jury was prejudiced by the media coverage.

A divided panel of the Second Circuit rejects this argument, largely on waiver grounds. Although Elfgeeh raised the issue with the district court, he did not request the proper procedure ? i.e., to poll the jurors as a group about whether they read any articles. In the absence of any evidence that the jurors read the articles, the majority presumes that the jury followed the court?s instruction not to view any news coverage of the trial.

Judge Sack dissents, arguing that the odds are slim to none that the jury was not influenced by the media coverage. He writes,

This was the first day of testimony in a high-visibility criminal case. Articles of similar prejudicial import appeared in all three major tabloids serving the Eastern District of New York that morning. . . . I would surmise that jurors, while commuting to the courthouse or waiting to enter the courtroom, and having been warned not to discuss the case among themselves, would be very likely to read the papers. The chances seem to me to be rather remote that no juror saw or heard about the contents of any of the four articles about the case on which they were sitting ?- court admonishment to the contrary notwithstanding.

Accordingly, he concludes that Elfgeeh?s convicted should be vacated on Due Process grounds.

Full post as published by Decision of the Day on February 14, 2008 (boomark / email).